Al: I teach a philosophy class for the University of St. Francis, and we have lengthy discussions on capital punishment. I have also written many articles on the subject, but I would like to have you talk with me about your feelings of the subject. However, I need you to give me a quick thumbnail of who Rob Warden is, where he was born, grew up, and went to school.
Rob: I was born in a little town called Carthage, Missouri. People about our age might be familiar with it as the crossroads of Route 66 and 71. Almost anyone who was going from the east to the west or from the north to the south passed through Carthage. When I was in high school, I actually worked at a filling station right at that intersection-actually, there were four filling stations at that intersection! I went from there to the University of Missouri and Pittsburg State University in Pittsburg, Kansas. I left there as a senior to take a job with the newspapers in Michigan. I worked primarily at the Kalamazoo Gazette for a couple of years, and then I became a science writer at the Chicago Daily News in 1965. I did fairly well in journalism becoming the assistant financial editor of the paper, and then ultimately the assistant national editor and the night city editor. It wasn't long before I became a foreign correspondent and was in the Middle East and Europe in the mid 70s. I had a rather dramatic escape from a hotel in Beirut at the height of the internal strife in Lebanon. I don't think that they were even yet calling it a civil war. From my perspective, it was a civil war!

My interest in investigative reporting had caused me to gravitate toward the law and lawyers as sources. When the Chicago Daily News folded in 1978, I worked very briefly for the Washington Post and then had an opportunity to start the publication, Chicago Lawyer, where I was the editor and published it for ten years. We were really the first to start writing about the wrongful conviction problem. Others merely wrote it off as something that was just a sort of an anomaly of a well-functioning system. However, these few flaws affected thousands, maybe as many as 100,000 people in America who are imprisoned at any given time for crimes that they didn't commit.

No one had ever approached it in that manner before. There had been some other very good efforts on convictions: Gene Miller at the Miami Herald has done great work and a group of reporters had done some work on a New Mexico case. But, once again, they are just sort of hung out there like, "Oh, gee, isn't it terrible that this happened," but few got excited about it. After all, it's very rare.

Some even said, "This guy is probably not innocent, but this is just one of those cases in which we can't meet our burden of proof beyond a reasonable doubt. You know, this is the best system in the world, but no system of course is perfect. Nevertheless, this guy is probably guilty as charged. If he is innocent, boy that's terrible, but rest assured this would be a very rare occurrence."

Well, it's not a rare occurrence. In fact, our experience here in Illinois, of the 289 men and women (five were women) sentenced to death between 1977 and 2003, that Governor Ryan commuted their sentences, 17 of them have been shown to be innocent and have been exonerated. They are today legally innocent. That is an error rate of 5.6%, and it is absolutely intolerable. If we look at that and see the error rate is 5%, that means that out of the 2 million people in prison, that would mean that there are 100,000 innocent people in prison at any given time.

Al: What would the error rated for capital cases?

Rob: In Illinois capitol cases, I am confident that the error rate probably holds true across the country, is approximately 10%. That means that for every ten people that we have executed, it is very likely that one of those people was innocent. The scary thing about it is that the guilt or innocent issue is just the threshold when it comes to capitol cases. It is still being applied in an arbitrary, capricious, wanton, freakish, and racially discriminatory manner. If you look at the city of Chicago for instance, only 6% of the murder victims in this city are white, and yet, more than 50% of the people who are on death row for murders that occurred in the city of Chicago, are there for killing white victims. Now, the people on the other side will say, well, that doesn't really prove anything, maybe these crimes were qualitatively worse, but I don't think so. I mean, that might explain a minor discrepancy. Perhaps cross-racial crimes are more violent and tend to be worse than crimes committed by people of the same race, but I don't think so. Even if this were so, it is not going to account for that 10 to 1 disparity that I just described.

The other phenomenon is that they arrest some kid, the kid is in the county jail, and he has been there for six months awaiting trial. The prosecutors say, "Look if you plead, we will recommend a one year sentence. You can basically walk out the door; here is the key to your cell." If the kid says that he is innocent, then they say, "Well, if you are found guilty, then you will have to do for five years. Do you want that or do you want to take our deal here?" That is the insidious plea bargaining dilemma. It is really a modern form of torture. Usually, if you want to get a handle on the problems that we have in society, we just set our social scientists loose to go out and do a survey. For example, do you want to know how much unreported rape there is? We go out and survey women. "Have you ever been raped? Did you report it to the police?" Then we publish the results. We can't go into a prison and say, "Hey, how many of you guys are innocent?" There is no way to prove the percentage of innocent. We have to look for other means rather than conventional social science techniques to get a handle on how serious this problem is. Whether it is 5%, 10%, or even 1%, it's still a serious problem.

Al: Whatever the percentage is, how would you break it down?
Rob: There are different levels of the causes of wrongful convictions. Fundamentally, in almost every wrongful conviction about which we know, there has to be police or prosecutorial misconduct, but it becomes a very hard thing to quantify. Unless you have an appellate court finding or something like that, which finds police or prosecutorial misconduct; it is very hard to prove. I have been looking at the ones that are quantifiable. If we can prove by DNA that somebody did not commit the crime, and there were eyewitnesses who placed him at the scene or placed him with the victim or sometimes the victim's own identification, then it's quite clear, that the identification testimony was simply wrong. The same thing is true of if there was junk science in the case or if there is a false confession.

Al: Why would someone confess to a crime that he didn't commit?
Rob: That is an interesting question, that I can deal with in a minute if you want, but let's look at junk science. Suppose that there was hair evidence, there was something that was presented that appeared to be exculpatory but wasn't. Therefore, it was either false or misleading forensic science. There can be no dispute upon these factors. The jailhouse snitch and false confessions are other important areas of concern. Most people cannot understand or appreciate these false confession phenomena. They can't imagine that a person could ever confess to a crime that a person didn't commit. Not a month goes by that somebody doesn't walk into an L.A. police station and announces, "I killed the Black Dahlia" or "I killed Nicole Brown Simpson." They are crazy people, and we understand that people can be tortured, and as we know has happened in the city of Chicago. In the State of Illinois, we have had about forty-five documented wrongful convictions in murder cases. Confessions or exculpatory statements somehow affected twenty-six of those-that is literally more than 50% of the cases. Now, this wasn't always the confession of the guy himself. Sometimes, it was the confession of an accomplice or a jailhouse snitch testifying in return for leniency for him or herself. However, there are a lot what appear to be confessions that almost appear to be voluntary.

A very good example would be the case of Gary Gauger in McHenry County, Illinois. Gary was convicted and sentenced to death for the murder of his parents, a crime for which the prosecution contended he confessed. Gary always denied that he confessed or intended to confess, but the circumstances were that he wakes up in the morning and finds his father apparently dead. He calls 911, they come and soon find his mother dead. Gary is the only person around and naturally is a suspect. They take him in for questioning, and after twenty-seven hours of interrogation, they claim that Gary confessed. Now, Gary's story is somewhat different. He says that the police told him that they found bloody clothes and a knife in his room, and that he had to have done it. He must have done it somehow and then blacked out, and that's why he doesn't remember it. After twenty-seven hours, Gary starts thinking that the police must be correct. Maybe, he blacked out and doesn't remember it. The police tell me that it is a common phenomena, somebody does something like this, in the midst of momentary insanity and blackout. Then they tell Gary just start hypothesizing about how you might have done it. How would he do it if he had murdered his parents? Maybe thinking about it would jar your memory, and it will all come back to him. Gary finally starts thinking he did it. Then there was a jailhouse snitch who claimed that Gary confessed the whole thing. That's the evidence that convicted and sent Gary Gaugher to death row.

The very first wrongful conviction that I ever saw was in the early 80s. It was on the south side of Chicago and involved a young man named Lavell Bert. You can read about him on our website. Lavell had just been convicted of a murder of a child. This happened near what was then Comiskey Park. A child is standing in the front door of his home and he is shot dead. Lavell Bert confessed to this crime. The story that he told is quite persuasive. He was intimidated by some rival gang members. So, he went home to get a gun to protect himself. When he saw the rival gang members running down the street, he fired a shot at them and missed. He did hit this child standing in a doorway. He then ran down the street and threw the gun away. Of course, they never found the gun, for good reason. However, Lavell confesses and is convicted. Very shortly after the conviction, the grandmother of the victim calls the judge and says, "Your honor, I think there has been a terrible mistake. I found the weapon that I believe killed my grandson, and it was in my daughter's bureau drawer. She has admitted to me that this was an accidental shooting, and that she made up this story because she didn't want to admit what had happened. She never thought that anybody was going to be charged and convicted. She has now told me the whole story."

Well, they checked ballistics, and it was the gun. I will never forget it. I called Lavell Bert with his lawyer's permission to let me interview him, and I said, "Lavell, why did you confess?" I couldn't imagine what did to him to make him confess. Did they put him on a rack, or did they put a typewriter cover over his head? I'm expected to get a horror story about how the Chicago police extracted this false confession from him. That's not what happened. Lavell said, "They slapped me around a little bit, but that's not why I confessed. They told me that these two girls told them this story, and I could hear the girls in the next room. They were laughing. Finally, one of the officers comes in and says, "Look Lavell, everybody knows that you are no baby-killer, and if this was an accident, we will be able to clear this up, and you will be able to go home this afternoon." After seven hours of interrogation, Lavell Bert could repeat back all the facts that the police just gave him. This is a very common phenomenon.

In the case of Aaron Patterson, he had been tortured and finally agreed to confess. However, with a paper clip he found in the interrogation room, he carved into the bench he was sitting on, "I have been tortured to confess." Then they brought in the State's Attorney to take the confession that they have gotten him to agree to make, and he refuses. There was simply no more reason to believe that he did it, than to believe that anyone of a half a million other people in the area could have committed this crime. There was no reason whatsoever. They convicted and sentenced him to death based on a fabricated confession, a torture confession.

Sometimes, there are confessions that they have tricked you into making, sometimes they are confessions that they simply fabricated because all of their other techniques failed, and then this gross bunch like Burge that literally torture people into a confession. No matter what we do in the system, we can't reform the system. There is no way to prevent people from deceiving the system-there is simply no way. That is one of the reasons why I think we have no choice but to abolish the death penalty. As horrendous as it is, people can be convicted, imprisoned, and lose their freedom based on this kind of evidence. That's why I think we will ultimately abolish the death penalty-it is only a matter of time.

Al: How was it that George Ryan imposed a moratorium of the death penalty?
Rob: We had this conference here in 1998. It was the first national conference on wrongful convictions and the death penalty. This was the first time that we ever really got the national and international media to see that this was really a systemic problem and not just this anomaly. The media was able to see these people, touch them, shake hands with them, and interview them. We had more than thirty of them here at the Northwestern Law School. Two months after that conference, Anthony Porter had forty-eight hours to live. He had been measured for his burial suit and had ordered his last meal. We were able to persuade the Illinois Supreme Court to grant a stay on the ground that he had such a low I.Q. that he literally might not be capable of understanding what was about to happen to him or why.

Anyone who has seen Anthony Parker interviewed would think that he wasn't that impaired. He only tested like 68-72 on various IQ tests. Sometimes, people have very low IQs but are very good at compensating, and I think that Anthony Parker is one of these people.

At any rate, we get his execution delayed, because of the delay, journalism students working under David Protest and a private investigator, Paul Sealino were able to solve this crime. George Ryan was aghast; he could have signed off on Anthony Parker's execution and would have had blood of an innocent man on his hand. This profoundly shook George Ryan. It was really an epiphany for him, because he trusted the system.

Al: When I interviewed Sen. Paul Simon, we also talked about capital punishment. He asked me, "Do you feel safer driving through Illinois or Texas? One doesn't have the death penalty and the does. If capital punishment is a deterrent, then you would feel safer in Texas."
Rob: In the first place, when you say do you feel safer, that's probably not the real point.

The real point is--are you safer? Quite clearly, you are not. In the first place, we only impose the death penalty, that is, sentence people to death in about 2% of the cases that have come to court in which the death penalty is an option. If you look at the number of people sentenced to death in terms of the number of murders, it is less than two tenths of 1% of all the murders that occur. So in fact, if you just literally let all of these people go, it would not have an appreciable effect on the safety of society as a whole. Now, I'm not advocating that, but the numbers are simply too small to have an appreciable effect on public safety in that respect.

Al: Some see capital punishment having a deterrent effect.

Warden: If you want to kill me, but you don't want to do it because this is a death penalty state? The average person who is about to commit a murder is somehow going to stop and subject his desire to kill to a cost to benefit analysis and conclude, "Gee, I better not because I could get the death penalty." That is just absurd. You know they had the death penalty in England until 1816 for pick pocketing, and it didn't even appear to deter pick pocketing at the executions of pickpockets! So, it simply doesn't work.

If you want to look at the evidence in the US that the death penalty isn't a deterrent, take North and South Dakota. S. Dakota has the death penalty, and N. Dakota does not. The murder rate in S. Dakota is about 30% higher than N. Dakota's.

Common sense tells you that capital punishment tends to brutalize the society and make murderers of us all. Why do we kill people to show that killing people is wrong? It doesn't really make a great deal of sense. If you could show me that every person that we execute in this country, we deter ten murders, then the argument and the equation might change. Then you might have a cost to benefit analysis, but there isn't. Therefore, we ought not to have capital punishment because of the grave risk that is in involved in executing an innocent person. We have shown that that is a significant consideration that errors occur in a high number of cases.

Al: As we look around at the rest of the civilized world, our society stands out.

Rob: Yes, of course, you have to realize that this is all fairly recent. All of Europe was executing people well after WWII. We are decades behind them. We certainly don't like being put in with societies like Iran, Iraq, China, and Saudi Arabia, which are principal practitioners of the death penalty. I don't think that any of us would feel safer in those societies. We will join the rest of the Western World at some point; the only question is when?

Al: Even Turkey wants to get in the EU and will have to abandoned the death penalty?
Rob: Yes, it's a requirement. You can't get into the EU unless you have abolished the death penalty. Russia and South Africa have done away with it-almost everywhere else has.

Al: Why is it so appealing to us? Is it the American frontier mentality?
Rob: No. I don't think that it's the frontier mentality. As a matter of fact, if you just did public opinion polls on the death penalty here and in Europe you find that the public perceptions are pretty much the same. The fact is that horrible crimes occur in our society, and that horrible people commit horrible heinous crimes. It is very easy in the abstract if you haven't examined these issues in depth to say, what would be appropriate for this person? It is easy to understand the impulse, "The guy who did this should be dead." It is easy for us to understand that! I think we can all appreciate that. I didn't begin in life as a pathological opponent of capital punishment. I came to that position, sort of the same way that George Ryan did.

You have to study it, understand it, and see that there is no benefit to the death penalty. In addition, there are grave risks involved in it. That's why we ought to abolish it. Most people simply haven't gone into the issue in this depth. I think American politics tend to discourage courageous leadership. Our leaders follow the polls. Mr. Dewey said, "Even the Supreme Court follows the election returns." Well, the election returns are largely based on uninformed opinion in many issues. That's the situation here in the States, but it isn't that way in Europe.

Al: More informed electorate?

Rob: Yes. I think that the population tends to be more informed, but then the other aspect of this I think is the racial aspect. At one time or another, every state or every territory had capital punishment. In the 20s, some states began abolishing it. I think nine states had abolished it by 1930. We have thirteen states that still have capital punishment. It's been rather slow progress, but we are moving in that direction. However, there is an underlying factor. In the South, they have always thought that we needed capital punishment to control the blacks. Capital punishments very origins are pretty much racist, and capital punishment in the South was seen as an advance from the program of lynching. Then it turned out that the proof required by the courts was hardly any greater than the proof required by the mob before they lynched somebody!

Al: And then blacks moved North, and the racism and need was transported North.

Warden: That's exactly right. So, there are those two things: our politicians don't really tend to lead and there is this lingering racial element that motivates capital punishment. This explains the differences between the US and Europe on this issue.

Al: I have really enjoyed this interview; you have made a lot of sense.
Warden: I will go anywhere anytime and debate anybody on the death penalty. Why will I do that? Because, I win every time-not because I am a good debater, but because I have all the facts. They are on my side! Every single fact. There is nothing good that you can say about the death penalty. If you tried to sell death penalty stock on Wall St., you could be prosecuted for securities fraud!

If you are white, how bad do you think the crime has to be to get sentenced to death for killing somebody who is black? I tell you, it has to be absolutely awful. In Illinois, we have five instances of that happening-a white people sentenced to death for killing black people. You would have to commit murder in a most heinous manner for a white man to get sentenced to death for killing a black victim. If you look at the other hand, the typical case in which the black person is there, most of them are single victims, they were often felony murders, you know, a robbery at the 7-11 that went awry. There is just a great difference in the seriousness of these cases.

Al: I teach a philosophy class at the University of St Francis. It is interesting to hear how my students feel about this issue.

Rob: Gallup has been polling the American public about the death penalty since 1954, and the polls showed that the vast majority of people cited that the reason for supporting the death penalty was the deterrent effect. I did an interview a few years back for an ABC reporter, and I said, "Do you know we have had this error rate of like 5%, and the guy said, "Well, 5% isn't bad." I couldn't believe it. Would you get on an airplane if nineteen out twenty flights made it to their destination?

Al: I'll use that illustration next semester. I also tell my students that the death penalty desensitizes us when we allow capital punishment. I think that it adversely affects our society by killing the humanity within us.

Rob: I think that is correct. There isn't any good reason for keeping capital punishment.